Rule of Law

Public Law A
Lecture 5


The Rule of Law
Aristotle - the rule of law, not of men
Idea = prevent arbitrary and
capricious government
All equal by virtue of being governed
by the same body of laws
Rule of law in the UK
UK: Dicey (1885) 3 components:
The absolute supremacy of regular law, cf.
arbitrary power. Certainty v. arbitrariness.
All British subjects government and
governed alike are subject to the same law
i.e. equality before the law.
The rights of individuals are secured by the
ordinary remedies of the common law.

Rule of law v. Rule of good
law
Narrow view:
government is bound by rules fixed
and announced beforehand - rules
which make it possible to foresee with
fair certainty how the authority will use
its coercive powers and to plan
ones individual affairs [accordingly].
F.A. Hayek, The Road to Serfdom
(1944)
A democratic principle?
[The RL] is not to be confused with
democracy, justice, equality , human
rights A non-democratic legal system,
based on the denial of human rights, on
extensive poverty, on racial segregation,
sexual inequalities and religious persecution
may, in principle, conform to the RL. (J.
Raz, 1977)
Ultimately RL is a negative value - merely
designed to minimise the harm to freedom
and dignity which the law may cause, not
guarantee those freedoms (Raz)
Middle ground - guiding
principles
All laws should be prospective, open and clear
(i.e. not retrospective)
Laws should be relatively stable
Law-making should be guided by open, stable,
clear and general rules
The independence of the judiciary must be
guaranteed [can RL exist in a dictatorship?]
The principles of natural justice must be
observed
The courts should have review powers over
implementation and be easily accessible
The discretion of crime prevention agencies
should not be allowed to pervert the law (Raz)

Broader than legality?
It is widely understood that the bare notion
of formal legality cannot furnish a useful
conception of the rule of law. (Allan, 1999)
RL promotes principles of procedural
fairness, legality, equality, impartiality, and
proportionality (Allan, 1999)
Questions of justice directly relevant to
questions of law - theory of law as integrity
- ideas of common good (R. Dworkin, Laws
Empire, 1986)
Rule of law: Issues
Law and order is better than anarchy but
can the rule of law be maintained in military
occupation or dictatorship?
Government according to the law what
sanctions are available to ensure that govt
operates according to the law? Entick v
Carrington and M v Home Office
Rule of law ought it reflect morality, values
or accepted principles?

Rule of law and public
interest
R (on the application of Corner House
Research and others) (Respondents)
v Director of the Serious Fraud Office
(Appellant) [2008] UKHL 60